Charles V. Stern has updated (18 January 2022) his CRS report: 'Indian Water Rights Settlements'.
Download CRS_Report_Indian_Water_Rights_Settlements_18Jan2022
Summary
In the second half of the 19th century, the federal government pursued a policy of confining Indian tribes to reservations. These reservations were either a portion of a tribe’s aboriginal land or an area of land taken out of the public domain and set aside for a tribe. The federal statutes and treaties reserving such land for Indian reservations typically did not address the water needs of these reservations, a fact that has given rise to questions and disputes regarding Indian reserved water rights. Dating to a 1908 Supreme Court ruling, courts generally have held that many tribes have a reserved right to water sufficient to fulfill the purpose of their reservations and that this right took effect on the date the reservations were established. This means that, in the context of a state water law system of prior appropriations, which is common in many U.S. western states, many tribes have water rights senior to those of non-Indian users with water rights and access established subsequent to the Indian reservations’ creation. Although many Indian tribes hold senior water rights through their reservations, the quantification of these rights is undetermined in many cases.Since 1990, the Department of the Interior’s policy has been that Indian water rights should be resolved through negotiated settlements rather than litigation. These agreements allow tribes to quantify their water rights on paper, while also procuring access to water through infrastructure and other related expenses. In addition to tribes and federal government representatives, settlement negotiations may involve states, water districts, and private water users, among others.
Approval and implementation of Indian water rights settlements typically requires federal action—often in the form of congressional approval. As of 2021, 38 Indian water rights settlements had been federally approved, with total estimated costs in excess of $8.0 billion. Of these, 34 settlements were approved and enacted by Congress (4 were administratively approved by the U.S. Departments of Justice and the Interior). After congressional approval, federal projects associated with approved Indian water rights settlements generally have been implemented by the Bureau of Reclamation (Reclamation) or the Bureau of Indian Affairs (BIA), pursuant to congressional directions.
Historically, federal funding for settlements has been provided through discretionary appropriations; however, Congress also has approved mandatory funding for some settlements. The Reclamation Water Settlements Fund was enacted in 2009 under P.L. 111-11 as a means to provide a source of additional funding for existing and future settlements. It is scheduled to provide $120 million per year in mandatory funding for settlements through FY2029, with the availability of these funds currently expiring in FY2034. More recently, Congress approved and appropriated $2.5 billion for another Indian water rights fund, the Indian Water Rights Settlement Completion Fund, in the Infrastructure Investment and Jobs Act of 2021 (P.L. 117-58).
Three settlements were approved or amended in the 116th Congress, and other new and amended settlements have been proposed in the 117th Congress. One of the primary challenges facing new settlements is competition for federal funds (and the type of funding used), as well as the related question of cost shares by state, local, and tribal governments.
At issue for Congress is under what circumstances new Indian water rights settlements should be considered, approved, and amended and to what extent Congress should fund existing settlements. Some argue that resolution of Indian water rights settlements is a mutually beneficial means to resolve long-standing legal issues, provide certainty of water deliveries, and reduce the federal government’s liability. Although there is little opposition to generally stated principles that preference negotiated settlements to litigation, individual settlements (or elements thereof) are in some cases opposed by the executive branch and/or by other water users.
Introduction
Indian water rights settlements are a means of resolving ongoing disputes related to Indian water rights among tribes, federal and state governments, and other parties (e.g., water rights holders). The federal government is involved in these settlements pursuant to its tribal trust responsibilities. Since 1978, the federal government has entered into 38 water rights settlements with Indian tribes and other users, and 34 of these settlements have been congressionally approved. Negotiation of other settlements is ongoing.
Congressionally authorized settlements typically authorize funding, and in some cases provide direct/mandatory funding, for projects that allow tribes to access and develop their water resources. At issue for Congress is not only whether to enact new settlements with completed negotiations but also questions related to the current process for negotiating and recommending settlements for authorization. Some of the challenges raised by these settlements pertain to the provision of federal funding and cost shares associated with individual settlements, over-arching principles and expectations guiding ongoing and future settlements, and opposition to some settlements or specific parts of settlements by some groups.
This report provides background on Indian water rights settlements and an overview of the settlement process, and summarizes enacted and potential settlements to date. It also analyzes issues related to Indian water rights, with a focus on the role of the federal government and challenges faced in negotiating and implementing Indian water rights settlements. Finally, it focuses on settlements in a legislative context, including enacted and proposed legislation.
Cutting to the chase...
Conclusion
Long-standing disputes over water rights and use involving Indian tribes continue to be negotiated and settled by the executive branch and are thus likely to be an ongoing issue for Congress. This matter includes implementation of ongoing Indian water rights settlements, negotiation of new settlements, and consideration of these settlements for potential enactment and subsequent funding. Congress has enacted 34 settlements to date, and additional funding and amendments for ongoing settlements and authorizations of and appropriations for new settlements are likely to be requested in the future. In considering Indian water rights settlements, primary issues for Congress may include the cost, contents, and sufficiency of federally authorized efforts to settle tribal water rights claims, as well as the circumstances under which these settlements are considered and approved by authorizing committees and others (e.g., whether the executive branch formally supports all components of a proposed settlement). In addition, the preferred extent of federal involvement in implementing settlements, including the question of nonfederal cost shares and whether the federal government or tribes should take the lead in developing and constructing projects, may be a central question Congress considers in regard to future settlements.
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“The land is sacred. These words are at the core of your being. The land is our mother, the rivers our blood. Take our land away and we die. That is, the Indian in us dies.” – Mary Brave Bird, Lakota
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